Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2018 Danger from unstaffed control post not a normal condition of employment Some level of danger is part of the job for correctional officers, but staffing control post full-time was a reasonable safety measure that should be made: Tribunal BY JEFFREY R. SMITH THE RISK correctional officers face at an Alberta correctional institution caused by a control post only being staffed for part of the day is not a normal condition of employ- ment and warranted an officer's work re- fusal, the Canada Occupational Health and Safety Tribunal has ruled. e Edmonton Institution is a maximum security facility run by Correctional Service of Canada (CSC) in Edmonton. e prop- erty includes eight inmate living units and several courtyards around them, as well as an inner courtyard with entrances to the main building where the living units are housed. e inner courtyard has four doors accessing the living units and two doors ac- cessing program and service areas includ- ing the gymnasium, which are controlled by three armed control posts, two of which are elevated — EM-14 at the west end of the inner courtyard and EM-22 at the east end. e facility has a main communication and control post that monitors all doors and the inner courtyard and co-ordinates the movement of inmates. Staff in the control posts monitor the inner courtyard and confirm when it is clear and when to release inmates. Normally, all three control posts in the courtyard are manned when the gymna- sium is in use — weekday evening shifts and on weekends. However, past practice when the gymnasium wasn't being used — dur- ing daytime on weekdays — had post EM- 14, which overlooks the gymnasium, left unstaffed. In 2011, construction made cer- tain areas unavailable for recreation, so the gymnasium was used in the daytime during the week and EM-14 was staffed. Once the construction was completed in 2012, the regular gymnasium schedule returned and EM-14 was left unstaffed during the day. However, shortly after the regular recre- ation schedule resumed in 2012, an employ- ee at the institution instigated a work refusal because EM-14 was unmanned during the day. While a joint hazard analysis was con- ducted and evaluated over three years, CSC kept EM-14 staffed. A health and safety offi- cer completed the analysis on May 26, 2015, and determined EM-14 could be staffed only on evenings and weekends. CSC informed its correctional officers that EM-14 would go back to evenings and weekends staffing only, and officer Sandra Courtepatte immediately filed a work re- fusal, claiming it created danger for em- ployees. After a joint committee investiga- tion failed to reach a conclusion, a delegate appointed by the Alberta Minister of La- bour investigated. Institution ordered to resume all-day staffing of control post e ministry delegate found the lack of staff- ing of control post EM-14 during weekdays constituted a danger to employees at work, as it prevented a "rapid armed emergency response" to certain areas that were "blind spots" that the other control posts couldn't see due to overhangs in the inner courtyard. e delegate issued an order under the Can- ada Labour Code for CSC "to take measures to provide an equivalent level of protection to employees in all areas of the courtyard" — meaning it should continue to staff EM-14 continuously, as it had since 2011. CSC appealed the order, arguing EM-14 had never been meant to provide an imme- diate armed response during movement of inmates in the courtyard, as evidenced by the staffing schedule before 2011. CSC also pointed out that no major assaults had ever taken place in the inner courtyard during the time EM-14 was empty, with the excep- tion of one incident in early 2011 in which correctional officers rapidly gained control of the situation. In addition, CSC said that the dangers identified by the ministry delegate were general and part of the normal condition of employment for correctional officers in a maximum security institution. e tribunal noted that the Canada La- bour Code defined "danger" as "any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person ex- posed to it before the hazard or condition can be corrected or the activity altered" — Courtepatte's work refusal was on the basis of her claim that there was a condition in the workplace that represented a danger under this definition. e tribunal also noted that normal con- ditions of employment limited the person- al right of employees to refuse dangerous work but employers had an obligation to prevent or reduce dangerous conditions as much as possible. Correctional officers in particular had a certain level of danger in their job description, which included "di- rect daily exposure to inmates who may be agitated, unpredictable or unco-operative or who may attempt to intimidate or resort to violence" and there was no real way to control the frequency or duration of diffi- cult situations. e condition causing Courtepatte's work refusal was an increased risk of injury or death from the blind spots in parts of the inner courtyard when control post EM-14 wasn't staffed, meaning those locations weren't covered by an "immediate armed response." e tribunal found that this haz- ard could indeed be expected to be a serious threat to Courtepatte's life or health, and it could be corrected before the situation be- came a danger — both determinative ele- ments on whether the condition could be considered to warrant a work refusal. e tribunal also found that EM-14 was staffed when inmate and officer traffic was increased during recreational times, so it was seen as a necessary procedure to en- sure safety — and the other control posts were staffed all of the time. When EM-14 wasn't staffed, there wasn't as much traffic, but there could be some during the day for various reasons. In addition, though CSC pointed out there had been no incidents ex- cept for one that was quickly taken care of, most of the previous few years had seen post EM-14 staffed at all times. As a result, the tribunal found that while a certain level of danger was expected as part of the job for correctional officers, CSC didn't take all reasonable steps "to eliminate, reduce, or control the hazard" Courtepatte and other correctional officers faced in the inner courtyard. Since all reasonable steps weren't taken, the circumstances caused by the lack of staffing post EM-14 was not a normal condition of employment. e tribunal upheld the ministry del- egate's order that CSC should staff con- trol post EM-14 and rectify the situation prompting Courtepatte's work refusal. For more information see: • Correctional Service of Canada v. Courte- patte, 2018 CarswellNat 5771 (Can. OH&S Trib.). Officers were worried blindspots would reduce response time if an emergency cropped up.

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